policy proposal

TRANSITION 2020–2021

A Presidential
Agenda for
Liberty and
National Security
By Elizabeth Goitein and Faiza Patel PUBLISHED OCTOBER 22, 2020

Brennan Center for Justice at New York University School of Law

Table of Contents
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ABOUT THE BRENNAN CENTER
FOR JUSTICE
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Brennan Center for Justice at
I. End Immigration Bans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 NYU School of Law is a nonpartisan
law and policy institute that works
II. End Racial and Religious Profiling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 to reform, revitalize — and when
necessary defend — our country’s
III. Mount an Effective and Targeted Response to systems of democracy and justice.
White Supremacist Violence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The Brennan Center is dedicated to
protecting the rule of law and the
IV. Build Guardrails for Emergency Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 values of constitutional democracy.
We focus on voting rights, campaign
V. End Warrantless Spying on Americans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 finance reform, ending mass
incarceration, and preserving our
VI. Recommit to National Security Transparency. . . . . . . . . . . . . . . . . . . . . . . 14 liberties while also maintaining our
national security. Part think tank,
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 part advocacy group, part cutting-
edge communications hub, we start
with rigorous research. We craft
innovative policies. And we fight for
them — in Congress and the states,
in the courts, and in the court of
public opinion.

S TAY C O N N E C T E D T O
THE BRENNAN CENTER

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© 2020. This paper is covered by the Creative Commons Attribution-NonCommercial-NoDerivs license. It may be reproduced in its entirety as long
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2 Brennan Center for Justice A Presidential Agenda for Liberty and National Security
Foreword

A
merican democracy urgently needs renewal. In the coming years, one of the
great issues facing the country will be the presidency itself. A half century ago,
in the wake of Watergate and Vietnam, laws and rules aimed to check the
“Imperial Presidency.” Over the decades those limits eroded and then were finally cast
off. The past three years have seen a refusal to honor oversight and a politicization of
the executive branch. The president insists the Constitution gives him “the right to do
whatever I want.” The abuse of power in Lafayette Park this summer was just the most
visible, and most violent, example of shattered norms. And from the administration’s
onset, abusive and often unconstitutional power has been wielded against religious
minorities and immigrants in a way that has no precedent in the past half century.
In this time of reckoning, a great task must be to reset the system of checks and balances and once again restore the
presidency to its rightful place. There must be, as well, an immediate reset of many policies that are driven by racial or
religious animus rather than the national interest.
This volume includes recommendations for executive actions and legislation from the Brennan Center for Justice
at NYU School of Law. They focus on ending religious and racial profiling and immigration bans driven by the same
motives, a new law enforcement focus on the real threat of white supremacist violence, and renewed protection for
civil liberties and transparency. It reflects, as well, urgently needed steps to curb abuse of executive powers. A previous
Brennan Center volume proposed executive actions to enhance ethics and fight corruption. A forthcoming report will
outline legislation and executive actions to end mass incarceration and advance racial justice.
In all of this, Congress must do its part to play its constitutional role. Courts, too, must step up.
But the president can lead, displaying what Alexander Hamilton called “energy in the executive,” this time not to
grossly expand presidential power but to restore the office to its rightful role.
We the people have a duty as well: to insist that our leaders commit to the Constitution and make renewal of our
democracy not just one issue among many but also a central task for our nation.

Michael Waldman
President
Brennan Center for Justice

3 Brennan Center for Justice A Presidential Agenda for Liberty and National Security
Introduction

O
ur freedoms — freedom to speak, travel, and worship; freedom from intrusive
government surveillance; and freedom from invidious discrimination — are the
guardians of our democracy. These freedoms are under threat as rarely before in
our history. Specious invocations of national security, the failure of Congress to fulfill its
role as a coequal branch of government, and a resurgence of overt racism both inside
and outside of government are enabling an alarming assault on civil liberties and
constitutional limits on executive power. As always, it is minority communities — African
Americans, Muslim Americans, immigrants, and others — who are bearing the brunt.
This assault has many fronts. Blanket immigration bans ƒ support legislation that would establish criteria for
have targeted entire countries based on religion and race. future decisions to deny entry; and
A national emergency declaration, whose sole purpose is
the construction of a wall along the southern border that ƒ put an end to “extreme vetting,” which facilitates
Congress refused to fund, has been in effect for over a discrimination in the issuance of visas and serves as
year. Military forces and heavily armed federal agents have a backdoor ban.
assembled in the streets of our cities to intimidate those
who peacefully protest racial injustice, all while the End racial and religious profiling.
Department of Justice is systematically deprioritizing the The president should
investigation and prosecution of white supremacist ƒ direct agencies to close the loopholes in their racial
violence. Each of these actions targets people of color, profiling guidance that enable profiling based on
painting them as less American than the waning white race, religion, nationality, and other protected
majority. characteristics in far too many cases; and
These unprecedented measures add to — and build on
— several longstanding government practices that under- ƒ support the long overdue passage of the End Racial
mine civil liberties and burden marginalized communities. and Religious Profiling Act, which would codify a
Changes in the law and technology have given the govern- prohibition on racial and religious profiling.
ment broad, warrantless access to Americans’ communi-
cations and other sensitive information. Gaps in racial Mount an effective and targeted response
profiling rules allow border agents, local law enforcement, to white supremacist violence.
and other government actors to target people based on The president should
their race, nationality, and religion. Excessive government ƒ commit his administration to collecting and disclos-
secrecy prevents effective congressional oversight and ing the data necessary to determine whether the
stymies accountability. Weak legal protections for whis- Department of Justice is adequately responding to
tleblowers translate to pink slips and criminal referrals white supremacist and far-right violence;
for government employees who expose abuses within the
executive branch. ƒ direct the attorney general to issue a comprehensive
To fulfill this nation’s promise of equality and freedom strategy to address this growing threat; and
for all, we must change course. Our country is more
secure, not less, when our government welcomes people ƒ reject approaches — such as new domestic counter-
of all faiths and races; decides whom to investigate and terrorism laws and Targeted Violence and Terrorism
prosecute based on evidence of criminal conduct rather Prevention programs — that hold little promise but
than on a person’s race or beliefs; and operates with trans- carry significant risk for the marginalized communi-
parency, oversight, and accountability. To that end, the ties they inevitably target.
president should undertake the following policy changes:
Build guardrails for emergency powers.
End immigration bans. The president should
The president should ƒ issue a presidential memorandum establishing criteria
ƒ immediately repeal existing blanket immigration for declaring a national emergency and support
bans, including those against travelers from several legislation amending the National Emergencies Act to
majority-Muslim and African countries; bolster Congress’s role as a check against abuse;

4 Brennan Center for Justice A Presidential Agenda for Liberty and National Security
ƒ disclose presidential emergency action documents to
relevant congressional committees; and
ƒ issue an executive order placing a heavy thumb on
the scales against using military forces for domestic
law enforcement, even in those situations where the
Posse Comitatus Act does not apply.
End warrantless spying on Americans.
The president should
ƒ direct agencies to overhaul their procedures under
the Foreign Intelligence Surveillance Act (FISA) to
better safeguard Americans’ privacy, and support
FISA reform legislation;
ƒ direct agencies to develop policies requiring warrants
to obtain certain highly sensitive information, in
accordance with Carpenter v. United States; and
ƒ ensure that the federal government only supports the
development of digital contract-tracing tools if they
are effective and accompanied by strong privacy
safeguards.
5 Brennan Center for Justice
Recommit to national security
transparency.
The president should
ƒ issue an executive order targeted at reducing over-
classification and streamlining declassification;
ƒ issue a presidential memorandum limiting secret
law; and
ƒ strengthen protections for intelligence community
whistleblowers by revising Presidential Policy
Directive 19, directing the attorney general to revise
regulations, and supporting reform legislation.
These changes alone will not ensure the health of our
democracy. But they will go a long way toward securing
the freedoms for all Americans, regardless of race or
creed, that make a robust democracy possible.
A Presidential Agenda for Liberty and National Security
I. End Immigration Bans
Background
Blanket bans have become a defining feature of immigra-
tion policy. What first started as a ban on the citizens of
seven predominantly Muslim countries now prevents
more than half a billion people, including a quarter of
Africa’s population, from coming to the U.S. on equal
terms with people from other nations.1 Under cover of the
coronavirus pandemic, sweeping restrictions have been
placed on would-be immigrants and temporary workers,
among others.2
These bans are driven by prejudice, not proof. The pres-
ident has made clear that he doesn’t like Muslims,3
described African nations as “shithole countries,”4 and
disparaged those seeking a safe haven in the U.S. as
terrorists and criminals.5 The bans are also unnecessary.
The U.S. already has a robust vetting system for those
seeking entry — whether tourists, family members of
Americans, or people fleeing war-torn countries.6
In fact, the bans actually harm U.S. national security
and foreign policy interests by straining our relationships
with countries around the globe, as former national secu-
rity officials from across the political spectrum have
pointed out.7 And they do immeasurable damage, not only
to those seeking entry but also to immigrants here in the
United States who are blocked from reuniting with their
families and are stigmatized as belonging to an unwanted
group.8 Indeed, all Americans suffer from the negative
impact such bans have on tourism, cross-cultural
exchanges, the technology industry, universities, medical
institutions, and, ultimately, tax revenues.9
The 2017 Muslim ban’s pernicious companion is
“extreme vetting,” which seeks to deter travel to the
United States by imposing ever-increasing burdens on
people seeking visas. In some cases, these hurdles exceed
the requirements to get a top-secret security clearance
and delay visa applications for months or years.10 New
rules require applicants to disclose their social media
identifiers, allowing the U.S. government to easily track
their religious and political views and undertake ideolog-
ical vetting, an avowed goal of the Trump administration.11
The collection of social media identifiers is now manda-
tory for nearly all visa applicants, totaling 14 million people
annually.12 Plans are underway to expand the program to
sweep in an additional 33 million people, including
permanent residents, every year.13 Additional social media
vetting tools are being used in various ways by the Depart-
ment of Homeland Security (DHS) and the State Depart-
ment, with little transparency and minimal safeguards.14
Like the bans, extreme vetting seeks to close off the
United States and inflicts much of the same damage.
DHS’s inspector general has questioned the efficacy of
6 Brennan Center for Justice
pilot programs that employed social media to vet visa
applicants, and the department’s own assessments show
that such vetting is largely ineffective in identifying
national security threats.15 This is hardly surprising in light
of consistent empirical findings that social media is highly
vulnerable to misinterpretation.16 Rather than making us
safer, collecting social media handles sends the message
that the U.S. government will judge those who wish to
travel to the country based on the views they express
online, undermining our commitment to freedom of
speech and association.17
Solutions
Repeal the immigration bans.
On his first day in office, the president should repeal the
Muslim ban and associated restrictions on immigrants,
refugees, and asylum seekers, including Presidential Proc-
lamations 9645, 9822, and 9983 and Executive Orders
13769, 13780, and 13815, as well as any implementing
memoranda and directives. The president should also
repeal Presidential Proclamations 10014 and 10052 and
associated guidance, which use the coronavirus pandemic
as a pretext for sweeping bans on legal immigration.
Urge Congress to enact the No Ban Act and
pledge to sign it into law.
The president should urge Congress to enact the No Ban
Act, which passed the House of Representatives with
bipartisan support in July 2020.18 The bill overturns the
restrictions on people from majority-Muslim and African
countries entering the United States. It also guards against
future abuse of Section 212(f) of the Immigration and
Nationality Act, the law invoked as authority for the bans
and a host of other sweeping immigration restrictions, by
expanding antidiscrimination protections and requiring
that travel and immigration bans be supported by
evidence, narrowly tailored to further specified compel-
ling interests, and subject to review by Congress and the
courts.19
End backdoor bans and ideological profiling.
The administration must eliminate extreme vetting and
all other backdoor bans. It should review the changes to
visa forms made over the past four years to eliminate
requirements that create unwarranted barriers to entry.
It should end the State Department’s dragnet collection
of social media identifiers from applicants for immigrant
and nonimmigrant visas, which captures the data of up
to 14 million people each year in government databases.
A Presidential Agenda for Liberty and National Security
And it should halt plans to expand the program, including
DHS’s efforts to cover an additional 33 million people per
year.
In addition to these measures, the new president
should direct the State Department and DHS to conduct
a review of all programs that collect and analyze social
media for investigative and visa-vetting purposes, includ-
ing permanent, temporary, and pilot programs. The
review should map these programs and assess (1) whether
they are necessary and effective; (2) their impact on free-
dom of speech, religion, and association; (3) the existence
and extent of any disparate impact on different commu-
7 Brennan Center for Justice
nities; (4) whether these programs have comprehensive
and effective rules to protect civil rights and liberties
concerns; and (5) the measures in place to ensure that
these rules are followed and to ensure accountability for
abuses. These audits should be made available to the rele-
vant congressional committees and, to the extent possi-
ble, the public. Based on the audit results, the new
administration should inform Congress and the public
which collection programs will be continued and for what
purposes, disclose the evidence of their effectiveness, and
specify the civil liberties and nondiscrimination safe-
guards that ensure that they will not be misused.
A Presidential Agenda for Liberty and National Security
II. End Racial and Religious Profiling
Background
It is a cardinal principle of our democracy that all Amer-
icans — regardless of race, religion, or ethnicity — should
be treated equally by our government. As our law enforce-
ment agencies carry out the enormous responsibility of
keeping us safe, they must do so consistent with this
principle.
Unfortunately, history is replete with examples of law
enforcement failing to act in accordance with our values.
Communities of color have long endured discriminatory
policing,20 a practice that impedes their ability to freely
exercise their constitutional rights and fractures
police-community relations. Religious communities too
have experienced discriminatory policing, which
increased sharply after 9/11.21 Law enforcement agencies
deliberately target American Muslims for surveillance
without any basis to suspect wrongdoing, instead treating
these communities as inherently suspicious and monitor-
ing everything from how they practice their religion to
where Muslim students congregate.22
Latinos are treated as illegal immigrants, gang
members, or both, with their neighborhoods and work-
places targeted for Immigration and Customs Enforce-
ment raids and surveillance by state and local police.23 It
is now widely recognized, for instance, that gang data-
bases, which use vague and unproven criteria to make
determinations about gang membership, contribute to
the disproportionate targeting of Black and Latino youth
for surveillance, policing, and prosecution.24 The Trump
administration has further demonized Latino communi-
ties by recasting loosely defined gangs as dangerous
“transnational criminal organizations” and using excep-
tional national security measures to track and prosecute
people believed to be associated with them.25
Profiling is a concern in immigration as well. The
nondiscrimination policies of DHS and one of its compo-
nents, Customs and Border Protection (CBP), place no
restrictions on the use of religion as a factor in their inves-
tigative, screening, enforcement, and other activities, and
CBP does not limit its agents’ use of national origin to
make decisions about screening and admissions.26
Muslim travelers have long faced intrusive questioning at
the border, which accelerated in the aftermath of the
Muslim ban.27 More recently, in the wake of the U.S. drone
strike that killed Qassem Soleimani, a general in Iran’s
Islamic Revolutionary Guard Corps, CBP agents in Wash-
ington State launched an operation against U.S. citizens
of Iranian origin, stopping them at the border based on
their country of birth and inquiring about their religious
faith, political beliefs, and more.28
8 Brennan Center for Justice
These practices persist despite wide recognition that
racial, ethnic, and religious profiling is both wrong and
ineffective. Discriminatory assumptions in law enforce-
ment have a terrible cost, both to the individuals who
suffer invidious discrimination and to the nation, whose
goal of “liberty and justice for all” recedes with every such
act of discrimination.
Solutions
Direct federal agencies to update their
guidance and close loopholes that enable
profiling on the basis of race, religion, national
origin, and other protected characteristics, and
ensure that proxies are not used in their place.
First, the Department of Justice should amend its 2014
Guidance for Federal Law Enforcement Agencies Regard-
ing the Use of Race, Ethnicity, Gender, National Origin,
Religion, Sexual Orientation, or Gender Identity.29 This
guidance is substantially incomplete because it exempts
border security, does not cover law enforcement surveil-
lance activities, does not generally apply to state and local
law enforcement agencies, and has no provisions for
enforcement. In addition to closing these loopholes, the
revised guidance should ensure that individuals cannot
be targeted based on proxies for race, ethnicity, or reli-
gion. For example, there must be significant narrowing
and greater scrutiny of how gang affiliation is defined in
order to prevent specious claims from resulting in over-
broad targeting of Black and Latino communities.
In addition, to prevent further discriminatory targeting,
the president should direct CBP to issue updated guid-
ance that expressly prohibits discrimination based on
nationality where not required by law and direct both CBP
and DHS overall to issue guidance that prohibits discrim-
ination in screening on the basis of religion as well as
gender, sexual orientation, and gender identity.30
Prioritize passage of the End Racial and
Religious Profiling Act (ERRPA).
The president should urge congressional leaders and
members to expeditiously enact ERRPA, which has been
introduced several times (most recently as part of the
George Floyd Justice in Policing Act).31 The bill would
prohibit profiling “to any degree” of “actual or perceived
race, ethnicity, national origin, religion, gender, gender
identity, or sexual orientation” for investigatory or
enforcement activities.
A Presidential Agenda for Liberty and National Security
III. Mount an Effective and Targeted Response to
White Supremacist Violence
Background
White supremacist and far-right violence is a persistent
problem that regularly produces more U.S. fatalities than
attacks associated with foreign terrorist groups like ISIS
and Al Qaeda.32 Nonetheless, international terrorism has
been the No. 1 priority of the Federal Bureau of Investiga-
tion (FBI) for the last two decades,33 while white suprem-
acist and far-right violence is generally treated as a civil
rights matter, which ranks a distant fifth on the bureau’s
list of priorities.34
Recently, the bureau and the Justice Department claim
to have stepped up enforcement of the laws available for
prosecuting violent crimes by white supremacists.35 But
the FBI remains intent on obscuring the extent of this
type of violence, preventing an assessment of whether it
is properly applying its domestic terrorism resources to
the most violent threats. Congress passed the Hate
Crimes Statistics Act, which required the Justice Depart-
ment to collect national data regarding bias crimes, in
1990,36 but the Justice Department failed to follow this
mandate. Instead, it deferred to voluntary reporting by
state and local law enforcement through Uniform Crime
Reporting, a methodology that has failed to produce reli-
able data.37 The FBI also has sought to create a new cate-
gory of threat — “racially motivated” violence — that
conflates the demonstrated threat from white suprema-
cists with an imaginary threat from so-called Black iden-
tity extremists.38 As a result, the federal government does
not even know how many people white supremacists and
far-right militants kill across the country each year. And
the government has failed to comply with a provision in
the National Defense Authorization Act (NDAA) for Fiscal
Year 2020 that required it to harmonize across agencies
how domestic terrorism is defined and tracked; to disclose
how it is classified, prioritized, and investigated; and to
produce comprehensive and specific data about individ-
ual attempts and incidents of domestic terrorism.39
There is also a risk that efforts to combat white suprem-
acist violence will repeat the mistakes of the war on
terror, which gave rise to ineffective programs that
broadly targeted communities of color, especially
Muslims, as well as protesters and activists. Some
members of Congress, for instance, are pushing to create
a new crime of domestic terrorism.40 No such law is
needed. The FBI already has dozens of federal statutes at
its disposal to prosecute domestic terrorism cases, includ-
ing terrorism, civil rights, violent crimes, and organized
crime statutes.41 Domestic terrorism legislation would
9 Brennan Center for Justice
simply give the FBI another tool to aggressively target
disfavored communities, including racial and ethnic
minorities and protest movements.
DHS’s Targeted Violence and Terrorism Prevention
(TVTP) programs similarly do more harm than good. They
are explicitly built on failed countering violent extremism
(CVE) initiatives that have almost exclusively targeted
Muslim communities, reflecting and reinforcing false
stereotypes about their proclivity for violence.42 There is
no one-size-fits-all policy fix to “targeted violence,” which
even DHS concedes is an insufficiently specific term, with
working definitions sweeping in everything from work-
place violence to a large-scale terrorist attacks.43 More-
over, there is no way to reliably predict whether an
individual will commit a violent act.44 TVTP programs
thus produce little value but have significant downsides:
they disproportionately target marginalized communities
and unjustifiably cast suspicion on the most vulnerable
members of society.45
Solutions
Require the Department of Justice and the FBI
to expeditiously collect and publish
information on white supremacist and far-
right violence and develop a strategy for
addressing this threat as a matter of priority.
The president should direct the Department of Justice and
the FBI to expeditiously comply with all legal require-
ments to collect, track, and disclose information relating
to white supremacist and far-right violence and how the
government combats such violence, including the require-
ments set forth in the Hate Crimes Statistics Act and the
NDAA for FY 2020. The president also should direct the
development of a strategy to combat white supremacist
and far-right violence, which should include concrete
actions to ensure that the FBI investigates and prosecutes
these crimes as a matter of priority.
Reject counterterrorism approaches that are
not supported by empirical evidence and create
risks for communities of color.
The president should make clear that he intends to veto
any bill creating a new crime of domestic terrorism. In
addition, he should end the Department of Homeland
Security’s CVE and TVTP programs.
A Presidential Agenda for Liberty and National Security
IV. Build Guardrails for Emergency Powers
Background
The actions of the Trump administration have under-
scored the dangers of our current legal framework for
emergency powers, which grants broad powers to the
president without sufficient checks and balances. Under
the National Emergencies Act of 1976 (NEA),46 the presi-
dent has nearly unlimited discretion to declare a national
emergency, and such a declaration unlocks enhanced
powers contained in more than 100 provisions of law.47
The act’s legislative veto provision, which was meant to
guard against abuse by allowing Congress to terminate
emergency declarations with a concurrent resolution, was
held unconstitutional by the Supreme Court in 1983.48
Accordingly, to terminate an emergency declaration,
Congress has to pass a law by a veto-proof supermajority
— a nearly impossible feat in today’s hyperpartisan
environment.
President Trump has taken advantage of this state of
affairs. He declared a national emergency, though there
was none, to secure funding for a wall along the southern
border after Congress refused his budget request.49
Congress twice voted to terminate the emergency but was
stymied by the president’s vetoes.50 The president also
declared a national emergency to impose economic sanc-
tions on International Criminal Court prosecutors and
staff, in retaliation for the court’s investigations into
alleged post-9/11 war crimes by U.S. personnel.51 He used
emergency declarations to ban the Chinese-owned apps
WeChat and TikTok52 — a move that has been blocked by
a federal court because of the harm it would inflict on
Americans’ First Amendment rights.53 And he has threat-
ened to declare national emergencies to impose tariffs on
Mexico54 and to order U.S. companies out of China.55
In addition, recent reports have drawn attention to the
relatively unknown phenomenon of presidential emer-
gency actions documents (PEADs).56 These are unsigned
executive orders, proclamations, or messages to Congress
drafted in anticipation of a range of emergency scenarios.
They were originally devised by the Eisenhower adminis-
tration for use in the event of a nuclear attack on the
United States and have been updated by both Republican
and Democratic administrations since then. While
advance planning for emergencies is laudable, these docu-
ments are problematic in at least two respects. First, vari-
ous official sources indicate that PEADs, at least in the
past, have purported to authorize unconstitutional
measures such as the presidential suspension of habeas
corpus, establishment of martial law, detention of persons
inside the United States who are deemed dangerous, and
general search warrants. Second (and relatedly), the docu-
10 Brennan Center for Justice
ments are not shared with the relevant congressional
oversight committees.57
Finally, President Trump’s actions have highlighted
shortcomings in the law governing the use of military
personnel to police protests. He threatened to invoke the
Insurrection Act to deploy active-duty federal troops
during the mostly peaceful protests that followed the
police killing of George Floyd.58 While such an invocation
would clearly have been inappropriate, the act itself, with
its antiquated and vague language, 59 places few
constraints on the president. In addition, the governors
of eleven states deployed their National Guard units to
Washington, DC, under a provision of law (32 U.S.C. §
502) that authorizes federally funded training exercises.
Although nominally under the command and control of
the state governors, they in fact acted at the direction of
the president and the secretary of defense,60 who were
exploiting poorly drafted language in the statute to evade
the restrictions of the Posse Comitatus Act on the federal
deployment of troops for law enforcement purposes.61
Solutions
Issue a presidential memorandum establishing
criteria for declaring national emergencies,
and support legislative reform.
The president should issue a memorandum establishing
criteria for declaring a national emergency. Specifically,
he should commit to (1) declaring emergencies only when
unforeseen circumstances require immediate action to
prevent grave harm to public safety or other crucial
national interests; (2) not declaring a national emergency
to take any action for which Congress has withheld
support or funding; and (3) seeking congressional
approval, in the form of a joint resolution, for any use of
emergency powers (other than those authorized by the
International Emergency Economic Powers Act, which
presents unique considerations62) that extends beyond
30 days.
In addition, the president should commit to working
with Congress to enact bipartisan legislation, such as the
ARTICLE ONE Act,63 that would require presidential
national emergency declarations to expire after 30 days
unless Congress passes a joint resolution of approval.
Disclose presidential emergency actions
documents to Congress, and support
legislation requiring such disclosure.
The president should share extant PEADs with relevant
A Presidential Agenda for Liberty and National Security
congressional committees and should do the same for
any new or revised PEADs created during his administra-
tion. He should also support the enactment of legislation,
such as Sen. Edward J. Markey’s REIGN Act, to make such
disclosure mandatory.64
Issue an executive order and a presidential
memorandum limiting the domestic
deployment of the military, and support
legislative reform.
The president should issue an executive order and a pres-
idential memorandum limiting deployments of the mili-
tary under the Insurrection Act and Title 32. The president
should commit to invoking the Insurrection Act only in
cases of sustained violence or to enforce civil rights laws,
and only in circumstances where the states cannot or will
not address the problem. When invoking the act, the pres-
11 Brennan Center for Justice
ident should provide detailed explanations and plans for
deployment (including an end date) to Congress. The
president should also commit that National Guard units
will not be used for law enforcement purposes when
deployed for a federal mission (excluding major disaster
relief operations) under 32 U.S.C. 502(f).
The president should support legislative reform of
domestic deployment authorities, including Insurrection
Act reform (consisting of tighter criteria for deployment,
enhanced reporting to ensure that these criteria are met,
and a requirement for congressional approval after a short
time period)65 and reform of 32 U.S.C. 502(f) to prohibit
the National Guard from engaging in law enforcement
activities when pursuing a federal mission other than
major disaster relief (along the lines proposed by Sen. Tom
Udall and Rep. George McGovern).66
A Presidential Agenda for Liberty and National Security
V. End Warrantless Spying on Americans
Background
Warrants are one of the most basic safeguards of Amer-
ican democracy, regarded by the founders as critical barri-
ers to government overreach and guardians of individual
liberty.67 They keep the government out of our private
affairs unless there is both a compelling need and court
supervision, protecting dissent and free speech as well as
the privacy of political, religious, and social activities.
But the law has not kept pace with changes in technol-
ogy, and in some cases it has actually moved in the wrong
direction. As a result, the protections of the Fourth
Amendment, and the constitutional rights secured by
those protections, are steadily eroding.
The Foreign Intelligence Surveillance Act (FISA),68
which was intended to ensure the protection of Ameri-
cans’ constitutional rights when the government conducts
foreign intelligence surveillance, has turned into a rich
source of warrantless access to Americans’ communica-
tions and other highly sensitive information. Under
Section 702, an authority meant to target foreigners over-
seas, Americans’ communications are swept up in
massive amounts — and the FBI routinely searches for
and reads these communications without probable cause
or a warrant.69 The FBI also obtains extremely revealing
information from telecommunications companies, finan-
cial institutions, and other third parties70 — sometimes
without any court order71 — based on a low “relevance”
standard.
Even in ordinary criminal investigations, the govern-
ment has warrantless access to highly sensitive personal
information. This is a result of the so-called third-party
doctrine, the notion that information we share with third
parties (such as libraries, doctors, or banks) is not truly
private.72 This decades-old doctrine is ill-suited to the digi-
tal age, in which almost every action we take leaves a trail
of digital bread crumbs stored with third parties. Recently,
in Carpenter v. United States, the Supreme Court clarified
that the third-party doctrine is not absolute and cannot
be mechanically applied to novel forms of surveillance; in
that case, the acquisition of historical cell-site location
information.73 The Court’s reasoning in Carpenter would
apply to many other modern surveillance practices (such
as the collection of Internet search and web browsing
records), but it could be years before the Court addresses
those, by which time entirely new practices might have
been developed. Americans’ Fourth Amendment rights
should not be put on indefinite hold; the president and
Congress should step in now.
Finally, the spread of Covid-19 has opened the door to
new forms of untested but intrusive surveillance and the
accumulation of vast stores of health and location data,
12 Brennan Center for Justice
with insufficient attention being paid to whether the
proven benefits outweigh the privacy risks.74 Through
common cell phone apps, unregulated private companies
collect location information, which they can then sell to
government agencies or other buyers.75 Some states have
also rolled out cell phone apps to track people’s move-
ments or proximity to others to help with contact trac-
ing.76 While the data sets these apps generate may be
useful in tracking population-level trends, they can also
reveal sensitive individual-level information, such as
whether someone was at a protest or the nature of one’s
associations.77 Nonetheless, public health authorities are
collecting data in unprecedented quantities, with little
transparency about how this information is being used
and the entities with which it might be shared.78 The
involvement of private companies such as Palantir adds
another layer of opacity and risk.79 The law provides mini-
mal safeguards for the use and sharing of this informa-
tion, as the United States lacks a robust and comprehensive
regime to protect data privacy.80
Solutions
Support FISA reform, and implement
administrative changes in the interim.
The president should work with Congress to overhaul
FISA. Section 702 surveillance, which takes place without
a warrant, should be limited to foreign powers or their
agents and should occur only when the primary purpose
is acquiring foreign intelligence. The FBI and other agen-
cies should be required to obtain a warrant to search
Section 702 data for Americans’ information. Any unre-
viewed information about Americans should be deleted
after three years. Under the Section 215 and pen register/
trap-trace authorities, the targets again should be limited
to agents of foreign powers. And the law should specify
categories of information, such as call detail records, that
cannot be obtained with national security letters (which
involve no judicial approval or oversight). Pending legis-
lative changes, the president should direct agencies to
revise their internal procedures to implement these same
measures as a matter of policy.
Require a warrant for federal agencies to use
certain surveillance technologies and
techniques, and incentivize police
departments to do the same.
The president should work with Congress to extend
warrant protections to situations in which the govern-
ment seeks location data or other sensitive information
A Presidential Agenda for Liberty and National Security
from modern technologies including cell phones, smart
cars, body-worn technologies, and smart-home devices.
The legislation should also require a warrant to obtain
Internet search and web browsing records. Pending legis-
lation, the president should direct federal agencies to
obtain a warrant when accessing this type of informa-
tion.81 Moreover, the government should put in place
mechanisms, including funding conditions and technical
assistance, that incentivize state and local police depart-
ments to adopt similar policies and make those policies
easily available to the public.82
13 Brennan Center for Justice
Ensure that the collection and use of public
health information is effective, narrowly
tailored, and protective of privacy.
If digital tools are established to be useful for contact
tracing, the administration should only support those that
are voluntary, do not track sensitive location information,
and do not centralize data.83 The president, working with
Congress where necessary, must ensure that any individ-
ually identifiable or aggregated sensitive data obtained
for public health purposes, whether through an app or
other means, remains confidential and out of the hands
of law enforcement, immigration, and security agencies.84
The president should also build on the Obama adminis-
tration’s efforts to develop a comprehensive legal regime
to protect data privacy in the United States.85
A Presidential Agenda for Liberty and National Security
VI. Recommit to National Security Transparency
Background
Intelligence agencies have long been mired in a culture of
secrecy. A holdover from the Cold War, this reflexive
default to secrecy is harmful to national security today.86
Combating modern threats often requires broad and
quick sharing of threat information across the govern-
ment and with private partners.87 Perfectly securing digital
data against hacking or insider theft is next to impossible,
making secrecy a weak defense.88 And as the intelligence
community itself recognizes, the trust and support of the
American public are vital to its work.89
The Obama administration learned this lesson when
Edward Snowden leaked information about NSA surveil-
lance programs in 2013. The administration responded
with a concerted effort to bring more transparency to the
operation of intelligence agencies. It issued a set of prin-
ciples to guide the disclosure of intelligence-community
information.90 It declassified and released a significant
volume of information about intelligence policies and
practices, along with many Foreign Intelligence Surveil-
lance Court opinions and the intelligence community
directives that serve as regulations for intelligence agen-
cies.91 It issued yearly statistical reports on the use of its
national security authorities (primarily under FISA).92
The Trump administration has taken a very different
approach. Although it has continued to release statistical
transparency reports and significant Foreign Intelligence
Surveillance Court opinions (disclosures that are now
required by law93), it has shut down transparency on
national security matters wherever it can. For instance, it
reneged on a promise by the Obama administration to
release an estimate of how many Americans’ communi-
cations are swept up in FISA Section 702 surveillance.94
It classified and redacted previously public information
about Afghan security forces.95 It revoked President
Obama’s executive order establishing reporting require-
ments for civilian casualties of U.S. lethal operations over-
seas.96 And it recently ceased in-person briefings of
congressional committees on election security.97
The president should recommit to the principles of
intelligence community transparency and build on the
progress begun under the Obama administration. He
should tackle some of the stubborn secrecy problems that
still remain. Overclassification continues to be a major
concern, with petabytes of classified information — a
volume that overwhelms our overly bureaucratic declas-
sification system — being generated each year.98 There is
still a significant epidemic of secret law, including classi-
fied agency rules and binding legal interpretations.99 And
the patchwork of legal protections for intelligence
14 Brennan Center for Justice
community whistleblowers100 continues to serve more as
a trap than a safeguard, exposing those who perform this
vital service to official retaliation and even criminal
prosecution.
Solutions
Revise the executive order on classification.
The president should issue a revised order on classifica-
tion that adds to the reforms included in President
Obama’s order,101 with an eye toward reducing overclas-
sification and expediting declassification. It should
include the following key provisions: (1) the establishment
of a White House–led commission of senior agency offi-
cials tasked with narrowing the criteria for classification;
(2) a definition of “intelligence sources and methods”; (3)
a requirement to declassify or create unclassified summa-
ries of rules or binding legal interpretations; (4) the imple-
mentation of an auditing system to facilitate accountability
for repeated or intentional overclassification; (5) authori-
zation for the National Declassification Center to declas-
sify records at 25 years without referral to agencies with
equities; (6) creation of a system for declassifying infor-
mation classified for less than 25 years; (7) establishment
of an expedited review track under Mandatory Declassi-
fication Review for records of significant current public
interest; and (8) guidelines for the next Fundamental Clas-
sification Guidance Review.102
Issue a presidential memorandum on secret
law.
The president should issue a presidential memorandum
establishing principles and practices to rein in secret law.
The memorandum should include the following key provi-
sions: (1) the establishment of a standard higher than
generalized harm to national security for classifying rules
or binding legal interpretations (to be incorporated into
the new executive order on classification); (2) a require-
ment that agencies share all rules and binding legal inter-
pretations with Congress, the courts (in relevant cases),
and internal oversight bodies; (3) the imposition of a time
limit on withholding rules or binding legal interpretations
from the public, to prevent indefinite secret law; and (4)
a requirement that each agency produce a public index
listing all of its nonpublic rules and binding legal inter-
pretations by date, general subject matter, and any other
information that can be made available.103
A Presidential Agenda for Liberty and National Security
Strengthen administrative provisions and
support legislative reform to ensure protection
for intelligence community whistleblowers.
The president should amend Presidential Policy Direc-
tive 19, issued by President Obama, to clarify that whis-
tleblowers may report protected disclosures directly to
members of Congress and to require that agency heads
comply with corrective actions recommended by the
inspector general panels that review reprisal complaints.
The revised directive should also include stronger protec-
tions against security clearance retaliation across the
entire U.S. government and specifically prohibit retaliatory
investigations of whistleblowers. And it should explicitly
bar all executive branch officials from breaching the confi-
15 Brennan Center for Justice
dentiality of any government whistleblower.104
With respect to FBI whistleblowers, who are subject to
a different legal regime, the president should direct the
attorney general to revise Justice Department regulations
to improve the internal process for adjudicating FBI whis-
tleblower reprisal claims by authorizing administrative
law judges to review these cases using Administrative
Procedures Act standards and publishing their
decisions.105
The president should also support legislation that codi-
fies these improvements and ensures that intelligence
community and FBI whistleblowers have access to federal
courts to vindicate their rights once internal administra-
tive measures have been exhausted.106
A Presidential Agenda for Liberty and National Security
Endnotes
1  Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017); Exec.
Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017); Proclamation No.
9,645, 82 Fed. Reg. 45161 (Sep. 27, 2017); and Proclamation No. 9,983,
85 Fed. Reg. 6699 (Feb. 5, 2020).
2  Proclamation No. 9,822, 83 Fed. Reg. 57661 (Nov. 15, 2018);
Proclamation No. 10,014, 85 Fed. Reg. 23441 (Apr. 27, 2020); and
Proclamation No. 10,052, 85 Fed. Reg. 38263 (Jun. 25, 2020).
3  Faiza Patel and Rachel Levinson-Waldman, The Islamophobic
Administration, Brennan Center for Justice, April 19, 2017, https://
www.brennancenter.org/our-work/research-reports/islamopho-
bic-administration; and Brief of Amicus Curiae the Roderick &
Solange MacArthur Justice Center in Support of Respondents, Trump
v. Hawaii, 138 S.Ct. 2392 (2018) (No. 17-965).
4  Ali Vitali, Kasie Hunt, and Frank Thorp V, “Trump Referred to Haiti
and African Nations as ‘Shithole’ Countries,” NBC News, last updated
January 12, 2018, https://www.nbcnews.com/politics/white-house/
trump-referred-haiti-african-countries-shithole-nations-n836946.
5  Salvador Rizzo, “A Caravan of Phony Claims from the Trump
Administration,” Washington Post, October 25, 2018, https://www.
washingtonpost.com/politics/2018/10/25/caravan-pho-
ny-claims-trump-administration/.
6  Harsha Panduranga, Faiza Patel, and Michael Price, Extreme
Vetting and the Muslim Ban, Brennan Center for Justice, October 2,
2017, https://www.brennancenter.org/sites/default/files/2019-08/
Report_extreme_vetting_full_10.2_0.pdf; and Ron Nixon, “U.S. Vetting
System Already Robust Before Travel Ban, Report Finds,” New York
Times, April 17, 2018, https://www.nytimes.com/2018/04/17/us/
politics/us-vetting-system-already-robust-before-travel-ban-report-
finds.html.
7  Brief of Amici Curiae Former National Security Officials in Support
of Respondents, Trump v. Hawaii, 138 S.Ct. 2392 (2018) (No. 17-965).
8  Panduranga et al., Extreme Vetting and the Muslim Ban, 21–23;
Harsha Panduranga, “The Muslim Ban: A Family Separation Policy,”
Brennan Center for Justice, June 26, 2019, https://www.brennancen-
ter.org/our-work/analysis-opinion/muslim-ban-family-separa-
tion-policy; Brief of Amici Curiae Muslim Justice League et al.
Supporting Respondents and Affirmance, Trump v. Hawaii, 138 S.Ct.
2392 (2018) (No. 17-965); and Brief of Labor Organizations as Amici
Curiae Supporting Respondents, Trump v. Hawaii, 138 S.Ct. 2392
(2018) (No. 17-965).
9  Panduranga et al., Extreme Vetting and the Muslim Ban, 21–23
10  Brennan Center for Justice, “Comments of the Brennan Center,
Supplemental Questions for Visa Applicants,” October 2, 2017, https://
www.brennancenter.org/sites/default/files/StateDeptcom-
ments-10.2.2017.pdf.
11  Brennan Center for Justice, “Comments of the Brennan Center,
Application for Nonimmigrant Visa and Electronic Application for
Immigrant Visa and Alien Registration,” May 29, 2018, https://www.
brennancenter.org/sites/default/files/analysis/Comments%20
-%20Department%20of%20State%20-Visa%20Applicant%20
Social%20Media%20Collections%20-%20Public%20Notices%20
10260%20-%2010261.pdf; Moshe Schulman, “Who Needs a Border
Wall When You Have DS-5535,” New York Times, October 24, 2018,
https://www.nytimes.com/2018/10/24/opinion/schulman-immi-
gration-extreme-vetting-ds5535.html; “Donald Trump Calls for
‘Extreme Vetting’ of Immigrants and Visitors to the U.S.,” Chicago
Tribune, August 15, 2016, https://www.chicagotribune.com/
nation-world/ct-donald-trump-terrorism-speech-20160815-story.
html; Laura Meckler, “Trump Administration Considers Far-Reaching
Steps for ‘Extreme Vetting,’” Wall Street Journal, April 4, 2017, https://
www.wsj.com/articles/trump-administration-considers-far-reach-
ing-steps-for-extreme-vetting-1491303602; and Laura Meckler, “For
16 Brennan Center for Justice
Trump Administration, ‘Extreme Vetting’ Has Wide Scope,” Wall Street
Journal, March 27, 2017, https://www.wsj.com/articles/for-trump-ad-
ministration-extreme-vetting-has-wide-scope-1490621976.
12  U.S. Department of State, “Collection of Social Media Identifiers
from U.S. Visa Applicants,” last modified June 4, 2019, https://travel.
state.gov/content/travel/en/News/visas-news/20190604_collec-
tion-of-social-media-identifiers-from-U.-S.-visa-applicants.html;
60-Day Notice of Proposed Information Collection: Application for
Immigrant Visa and Alien Registration, 83 Fed. Reg. 13806 (proposed
Mar. 30, 2018); 60-Day Notice of Proposed Information Collection:
Application for Nonimmigrant Visa, 83 Fed. Reg. 13807 (proposed Mar.
30, 2018); and Sandra E. Garcia, “U.S. Requiring Social Media
Information from Visa Applicants,” New York Times, June 2, 2019,
https://www.nytimes.com/2019/06/02/us/us-visa-application-so-
cial-media.html.
13  Agency Information Collection Activities: Generic Clearance for
the Collection of Social Media Information on Immigration and Foreign
Travel Forms, 84 Fed. Reg. 46557 (proposed Sept. 4, 2019).
14  For an example, see Aaron Cantú and George Joseph, “Trump’s
Border Security May Search Your Social Media by ‘Tone,’” Nation,
August 23, 2017, https://www.thenation.com/article/trumps-bor-
der-security-may-search-your-social-mediaby-tone/.
15  Faiza Patel et al., Social Media Monitoring, Brennan Center for
Justice, May 22, 2019, updated March 11, 2020, 3–4, https://www.
brennancenter.org/our-work/research-reports/social-media-moni-
toring.
16  Natasha Lennard, “The Way Dzhokhar Tsarnaev’s Tweets Are
Being Used in the Boston Bombing Trial Is Very Dangerous,” Fusion,
March 12, 2015, http://fusion.net/story/102297/the-use-of-dz-
hokhar-tsarnaevstweets-inthe-bostonbombing-trial-is-very-danger-
ous/; and Bill Chappell, “Supreme Court Tosses Out Man’s Conviction
for Making Threat on Facebook,” National Public Radio, June 1, 2015,
http://www.npr.org/sections/thetwoway/2015/06/01/411213431/
supreme-court-tosses-outman-s-conviction-formaking-threats-on-
facebook. This is especially true of automated screening tools of the
type necessary to monitor social media at scale. Shervin Malmasi and
Marcos Zampieri, “Challenges in Discriminating Profanity from Hate
Speech,” Journal of Experimental & Theoretical Artificial Intelligence
30, no. 2 (2018): 187–202; Irene Kwok and Yuzhou Wang, “Locate the
Hate: Detecting Tweets against Blacks” (paper presented at the
meeting of the Association for the Advancement of Artificial Intelli-
gence, Bellevue, WA, July 14–18, 2013); Bo Han, “Improving the Utility
of Social Media With Natural Language Processing” (PhD diss.,
University of Melbourne, 2014), https://minerva-access.unimelb.edu.
au/bitstream/handle/11343/41029/thesis.pdf?sequence=1&isAl-
lowed=y; Cantú and Joseph, “Trump’s Border Security May Search
Your Social Media by ‘Tone’”; and Su Lin Blodgett and Brendan
O’Connor, “Racial Disparity in Natural Language Processing: A Case
Study of Social Media African-American English” (presented as a talk
at Fairness, Accountability, and Transparency in Machine Learning
Conference, Halifax, NS, Canada, 2017), https://arxiv.org/
pdf/1707.00061.pdf (noting that one tool flagged posts in English
slang as Danish with 99.9 percent confidence).
17  Doc Society v. Pompeo, No. 19-3632 (D.D.C. Dec. 5, 2019)
(complaint for declaratory and injunctive relief), https://www.
brennancenter.org/sites/default/files/2019-12/Complaint%20
Doc%20Society%20v%20Pompeo.pdf; and Carrie DeCell and
Harsha Panduranga, “Social Media Vetting of Visa Applicants Violates
the First Amendment,” Just Security, December 6, 2019, https://www.
justsecurity.org/67627/social-media-vetting-of-visa-applicants-vio-
lates-the-first-amendment/.
18  NO BAN Act, H.R. 2486 tit. 1, 116th Cong. (2020); and Nicole
Narea, “House Democrats Just Passed a Bill to Repeal Trump’s Travel
A Presidential Agenda for Liberty and National Security
Bans,” Vox, July 22, 2020, https://www.vox.
com/2020/7/22/21332511/no-ban-act-travel-ban-bill-trump.
19  Harsha Panduranga, “The ‘NO BAN’ Act: A Needed Check on
Presidential Decision-Making,” Just Security, August 17, 2019, https://
www.justsecurity.org/63669/the-no-ban-act-a-needed-check-on-
presidential-decision-making/.
20  Michelle Alexander, The New Jim Crow: Mass Incarceration in the
Age of Colorblindness (New York: New Press, 2010); Sentencing
Project, Report to the United Nations on Racial Disparities in the U.S.
Criminal Justice System, April 19, 2018, https://www.sentencingproj-
ect.org/publications/un-report-on-racial-disparities; Inter-American
Commission on Human Rights, Police Violence Against Afro-Descen-
dants in the United States, November 2018, http://www.oas.org/en/
iachr/reports/pdfs/PoliceUseOfForceAfrosUSA.pdf; Emma Pierson,
Camelia Simoiu, et al., “A Large-Scale Analysis of Racial Disparities in
Police Stops across the United States,” Nature of Human Behavior 4
(July 2020): 736–745, https://5harad.com/papers/100M-stops.pdf;
Clare Corbould, “The Fury in US Cities Is Rooted in a Long History of
Racist Policing, Violence and Inequality,” Conversation, June 1, 2020,
https://theconversation.com/the-fury-in-us-cities-is-rooted-in-a-
long-history-of-racist-policing-violence-and-inequality-139752; and
Wenei Philimon, “Not Just George Floyd: Police Departments Have
400-Year History of Racism,” USA Today, June 7, 2020, https://www.
usatoday.com/story/news/nation/2020/06/07/black-lives-mat-
ters-police-departments-have-long-history-racism/3128167001/.
21  Muslim American Civil Liberties Coalition, Creating Law
Enforcement Accountability & Responsibility Project, and Asian
American Legal Defense and Education Fund, Mapping Muslims:
NYPD Spying and its Impact on American Muslims, https://www.law.
cuny.edu/wp-content/uploads/page-assets/academics/clinics/
immigration/clear/Mapping-Muslims.pdf; Alexander J. O’Connor and
Farhana Jahan, “Under Surveillance and Overwrought: American
Muslims’ Emotional and Behavioral Responses to Government
Surveillance,” Journal of Muslim Health 8, no. 1 (2014), https://doi.
org/10.3998/jmmh.10381607.0008.106; New York Advisory
Committee to the U.S. Commission on Civil Rights, Civil Rights
Implications of Post-September 11 Law Enforcement Practices in New
York, March 2004, https://www.usccr.gov/pubs/sac/ny0304/
ny0304.pdf; and Nabiha Maqbool, “Defunding the Police Must Include
Ending the Surveillance of Muslims,” Intercept, June 25, 2020, https://
theintercept.com/2020/06/25/defund-police-dhs-cve-program/.
22  Mike German, Disrupt, Discredit, and Divide: How the New FBI
Damages Democracy (New York: New Press, 2019); Hearing on “Willful
Blindness – The Consequences of Agency Efforts to De-emphasize
Radial Islam in Combatting Terrorism” Before the Subcomm. on
Oversight, Agency Action, Fed. Rights, and Fed. Cts. of the S. Comm. on
the Judiciary, 114th Congress (2016) (statement of Farhana Y. Khera,
President and Executive Director, Muslim Advocates), https://www.
judiciary.senate.gov/imo/media/doc/06-28-16%20Khera%20
Testimony.pdf; Alex Ruppenthal and Asraa Mustufa, “As Trump
Relaunches Countering Violent Extremism, Records on Past Illinois
Program Reveal Links to FBI, Law Enforcement,” Chicago Reporter,
August 14, 2020, https://www.chicagoreporter.com/as-trump-re-
launches-countering-violent-extremism-records-on-past-illinois-pro-
gram-reveal-links-to-fbi-law-enforcement/; and Hassan v. City of New
York, 804 F.3d 277 (3rd Cir. 2015).
23  Victor Rios, Schools, Policing, and the Criminalization of Latino
Youth (Chicago: University of Chicago Press, 2017); Mexican American
Legal Defense and Educational Fund, National Day Laborer Organizing
Network, and National Hispanic Leadership Agenda, The Dispropor-
tionate Effect of Deportations on the Latino Community, May 2014,
https://www.maldef.org/wp-content/uploads/2019/01/Deporta-
tion_Brief_MALDEF-NHLA-NDLON.pdf; Monica Chawla, “‘Show Me
Your Papers’: An Equal Protection Violation of the Rights of Latino Men
in Trump’s America,” Touro Law Review 34, no. 4 (2018): 1157–1200,
https://digitalcommons.tourolaw.edu/lawreview/vol34/iss4/15;
McKenzie Funk, “How ICE Picks Its Targets in the Surveillance Age,”
New York Times, October 2, 2019, https://www.nytimes.
17 Brennan Center for Justice
com/2019/10/02/magazine/ice-surveillance-deportation.html; and
Hannah Dreier, “He Drew His School Mascot — and ICE Labeled Him a
Gang Member,” ProPublica, December 27, 2018, https://features.
propublica.org/ms-13-immigrant-students/huntington-school-de-
portations-ice-honduras/.
24  City of Chicago Office of Inspector General, “Review of the
Chicago Police Department’s ‘Gang Database,’” April 2019, https://
igchicago.org/wp-content/uploads/2019/04/OIG-CPD-Gang-Data-
base-Review.pdf (finding that 95 percent of the individuals designated
as gang members during arrest were Black, African American, or
Latino); and Nick Pinto, “NYPD Added Nearly 2,500 New People to Its
Gang Database in the Last Year,” Intercept, June 28, 2019, https://
theintercept.com/2019/06/28/nypd-gang-database-additions/
(reporting that 97.7 percent of the New York Police Department’s gang
database is Black or Latino).
25  President Donald J. Trump, “Remarks by President Trump in
Briefing on Keeping American Communities Safe: The Takedown of
Key MS-13 Criminal Leaders” (July 15, 2020), https://www.white-
house.gov/briefings-statements/remarks-president-trump-brief-
ing-keeping-american-communities-safe-takedown-key-ms-13-crim-
inal-leaders/; E.D. Cauchi and William M. Arkin, “Trump’s Secret New
Watchlist Lets His Administration Track Americans Without Needing a
Warrant,” Newsweek, May 18, 2020, https://www.newsweek.com/
trumps-secret-new-watchlist-lets-his-administration-track-ameri-
cans-without-needing-warrant-1504772; and Dara Lind, “MS-13
Explained: President Trump Has Turned the Salvadoran-American
Street Gang into Public Enemy No. 1,” Vox, February 5, 2019, https://
www.vox.com/policy-and-politics/2018/2/26/16955936/ms-13-
trump-immigrants-crime.
26  U.S. Department of Homeland Security, “Memorandum for
Component Heads from Secretary Janet Napolitano on the Depart-
ment of Homeland Security’s Commitment to Nondiscriminatory Law
Enforcement and Screening Activities,” April 26, 2013, https://www.
dhs.gov/sites/default/files/publications/secretary-memo-race-neu-
trality-2013_0.pdf; and U.S. Customs and Border Protection, “CBP
Policy on Nondiscrimination in Law Enforcement Activities and All
Other Administered Programs,” last modified February 24, 2020,
https://www.cbp.gov/about/eeo-diversity/policies/nondiscrimina-
tion-law-enforcement-activities-and-all-other-administered.
27  Council on American-Islamic Relations, Targeted: 2018 Civil
Rights Report, April 26, 2018, http://www.islamophobia.org/
reports/224-2018-civil-rights-report-targeted.html; Murtaza
Hussain, “Complaints Describe Border Agents Interrogating Muslim
Americans, Asking for Social Media Accounts,” Intercept, January 14,
2017, https://theintercept.com/2017/01/14/complaints-de-
scribes-border-agents-interrogating-muslim-americans-ask-
ing-for-social-media-accounts/; Muslim Advocates, “Muslim
Advocates v. U.S. Department of Homeland Security (No. 1),” May 2,
2017, https://muslimadvocates.org/court-case/muslim-advocates-v-
dhs/; Muslim Advocates, Unreasonable Intrusions: Investigating the
Politics, Faith & Finances of Americans Returning Home, April 2009,
https://muslimadvocates.org/wp-content/uploads/Unreasonable_
Intrusions_2009.pdf; Cherri v. Mueller, 951 F.Supp. 2d 918 (E.D. Mich.
2013); Cision, “CAIR Asks Federal Court in Mich. to Prohibit FBI, Border
Agents from Interrogating Muslim Travelers About Religious Beliefs
and Practices,” May 29, 2019, https://www.prnewswire.com/
news-releases/cair-asks-federal-court-in-mich-to-prohibit-fbi-bor-
der-agents-from-interrogating-muslim-travelers-about-religious-be-
liefs-and-practices-300858541.html; Muslim Advocates, Total and
Complete Shutdown: How the Trump Administration Is Working to Ban
Muslims from the United States, April 2018, https://docs.house.gov/
meetings/JU/JU01/20190924/109976/HHRG-116-JU01-
20190924-SD044.pdf; and American Civil Liberties Union, “Invasive
Questioning at the Border,” https://www.aclu.org/invasive-question-
ing-border.
28  Nicole Narea, “Nearly 200 Iranian Americans Were Detained at
the US-Canada Border,” Vox, January 7, 2020, https://www.vox.
com/2020/1/7/21054780/iran-trump-detain-canada-border-solei-
A Presidential Agenda for Liberty and National Security
manil; and Nick Bowman, “Gov. Inslee: ‘CBP Lied’ about Detention of
Iranian-Americans at Border,” My Northwest, January 31, 2020,
https://mynorthwest.com/1695039/gov-inslee-cbp-lied-about-de-
tention-of-iranian-americans-at-border/.
29  U.S. Department of Justice, Guidance for Federal Law Enforce-
ment Agencies Regarding the Use of Race, Ethnicity, Gender, National
Origin, Religion, Sexual Orientation, or Gender Identity, December
2014, https://www.justice.gov/sites/default/files/ag/pages/
attachments/2014/12/08/use-of-race-policy.pdf.
30  See U.S. Customs and Border Protection, “CBP Policy on Nondis-
crimination” for current guidance.
31  George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th
Cong. (2020); and Congressional Black Caucus and House Commit-
tee on the Judiciary, “Fact Sheet: Justice in Policing Act of 2020,”
https://judiciary.house.gov/uploadedfiles/fact_sheet_justice_in_
policing_act_of_2020.pdf.
32  National Consortium for the Study of Terrorism and Responses
to Terrorism, Global Terrorism Overview: Terrorism in 2019, July 2020,
https://www.start.umd.edu/pubs/START_GTD_GlobalTerrorismOv-
erview2019_July2020.pdf; Seth G. Jones, Catrina Doxsee, and
Nicholas Harrington, The Escalating Terrorism Problem in the United
States, Center for Strategic and International Studies, June 17, 2020,
https://www.csis.org/analysis/escalating-terrorism-problem-unit-
ed-states; Anti-Defamation League, Murder and Extremism in the
United States in 2019, February 2020, https://www.adl.org/
murder-and-extremism-2019; and David Neiwert, Domestic Terror in
the Age of Trump, Type Investigations, July 9, 2020, https://www.
typeinvestigations.org/investigation/2020/07/09/domestic-terror-
in-the-age-of-trump/.
33  Federal Bureau of Investigation, “Mission & Priorities,” https://
www.fbi.gov/about/mission; and Michael German and Sarah
Robinson, Wrong Priorities on Fighting Terrorism, Brennan Center for
Justice, October 31, 2018, 2–5, https://www.brennancenter.org/
our-work/research-reports/wrong-priorities-fighting-terrorism.
34  Federal Bureau of Investigation, “Mission & Priorities”; and
German and Robinson, Wrong Priorities on Fighting Terrorism, 16–17.
35  Worldwide Threats to the Homeland Before the H. Comm. on
Homeland Security, 116th Cong. (2020) (oral testimony of Christopher
Wray, Director, Federal Bureau of Investigation), https://www.rev.
com/blog/transcripts/house-homeland-security-hearing-tran-
script-september-17-fbi-director-testifies (the FBI opened more than
1,000 domestic terrorism investigations and made around 120 arrests
for domestic terrorism this year); Worldwide Threats to the Homeland
Before the H. Comm. on Homeland Security, 116th Cong. (2020)
(written statement of Christopher Wray, Director, Federal Bureau of
Investigation), https://www.fbi.gov/news/testimony/worldwide-
threats-to-the-homeland-091720; and Olivia Beavers, “Wray: Racially
Motivated Violent Extremism Makes up Most of FBI’s Domestic
Terrorism Cases,” Hill, September 17, 2020, https://thehill.com/
policy/national-security/516888-wray-says-racially-motivated-vio-
lent-extremism-makes-up-most-of-fbis.
36  Hate Crime Statistics Act of 1990, 28 U.S.C. § 534 (2020).
37  Uniform Crime Reporting Program, “About Hate Crime
Statistics,” Federal Bureau of Investigation, https://ucr.fbi.gov/
hate-crime/2010/resources/hate-crime-2010-about-hate-crime;
and German and Robinson, Wrong Priorities on Fighting Terrorism,
15–16.
38  Congressional Black Caucus, “Letter to FBI about ‘Black Identity
Extremists’ Assessment,” October 13, 2017, https://cbc.house.gov/
news/documentsingle.aspx?DocumentID=773; Confronting Violent
White Supremacy (Part II): Adequacy of the Fed. Response Before the
Subcomm. on Civ. Rights and C.L. of the H. Comm. on Oversight and
Reform, 116th Cong. (2020), https://www.govinfo.gov/content/pkg/
CHRG-116hhrg36828/html/CHRG-116hhrg36828.htm; Briefing
Examining Fed. Bureau of Investigation “Black Identity Extremism”
Report Before the Task Force on Foreign Aff. and Nat’l Security of the
Cong. Black Caucus, 115th Cong. (2018) (statement of Michael
18 Brennan Center for Justice
German, Fellow, Brennan Center for Justice), https://www.brennan-
center.org/sites/default/files/analysis/CBC%20MGerman%20
statement%20final.pdf; and Natasha Lennard, “Trump Administra-
tion Is Making It Harder to Find Out Whether It’s Fighting White
Supremacist Terror,” Intercept, June 8, 2019, https://theintercept.
com/2019/06/08/white-supremacist-domestic-terrorism-fbi-jus-
tice/.
39  National Defense Authorization Act for Fiscal Year 2020, Pub. L.
No. 116-92 (2019). Further complicating the issue, the FBI routinely
warns its agents that subjects of its domestic terrorism investigations
regarding white supremacists and far-right militants often have
contacts in law enforcement. Federal Bureau of Investigation, White
Supremacist Infiltration of Law Enforcement (intelligence assess-
ment), October 17, 2006, http://s3.documentcloud.org/docu-
ments/402521/doc-26-white-supremacist-infiltration.pdf. For
broader discussion, see Michael German, Hidden in Plain Sight:
Racism, White Supremacy, and Far-Right Militancy in Law Enforce-
ment, Brennan Center for Justice, August 27, 2020, https://www.
brennancenter.org/our-work/research-reports/hidden-plain-sight-
racism-white-supremacy-and-far-right-militancy-law.
40  Harsha Panduranga and Faiza Patel, “‘Domestic Terrorism’ Bills
Create More Problems Than They Solve,” Just Security, August 28,
2019, https://www.justsecurity.org/65998/domestic-terrorism-bills-
create-more-problems-than-they-solve/. For examples of problem-
atic domestic terrorism bills, see Confronting the Threat of Domestic
Terrorism Act of 2019, H.R. 4192, 116th Cong. (2019); and Domestic
Terrorism Penalties Act of 2019, H.R. 4187, 116th Cong. (2019).
41  German and Robinson, Wrong Priorities on Fighting Terrorism.
Congress has enacted 51 federal crimes of terrorism that apply to
entirely domestic acts, and it has further prohibited material support
toward the commission of these crimes (18 U.S.C. § 2339A). It has
passed five federal hate crimes laws targeting bias-motivated
violence, and the Justice Department has used dozens of other federal
laws in prosecuting cases it labels as domestic terrorism, including
conspiracy laws and organized crime statutes that can be used to
dismantle violent groups. Michael German and Emmanuel Mauleón,
Fighting Far-Right Violence and Hate Crimes, Brennan Center for
Justice, July 1, 2019, https://www.brennancenter.org/our-work/
research-reports/fighting-far-right-violence-and-hate-crimes.
42  Office for Targeted Violence and Terrorism Prevention, Fiscal Year
2016 Countering Violent Extremism Grant Program: Preliminary Report
on Programmatic Performance, U.S. Department of Homeland
Security, March 26, 2020, 2, https://www.dhs.gov/sites/default/files/
publications/20_0326_tvtp_preliminary-report-programmatic-per-
formance-fy16-cve-grants_1.pdf; Brennan Center for Justice, “Why
Countering Violent Extremism Programs Are Bad Policy,” last updated
September 9, 2019, https://www.brennancenter.org/our-work/
research-reports/why-countering-violent-extremism-pro-
grams-are-bad-policy; Faiza Patel, Andrew Lindsay, and Sophia
DenUyl, Countering Violent Extremism in the Trump Era, Brennan
Center for Justice, June 15, 2018, https://www.brennancenter.org/
our-work/research-reports/countering-violent-extrem-
ism-trump-era; and Faiza Patel and Meghan Koushik, Countering
Violent Extremism, Brennan Center for Justice, March 16, 2017,
https://www.brennancenter.org/sites/default/files/publications/
Brennan%20Center%20CVE%20Report.pdf.
43  U.S. Department of Homeland Security, Strategic Framework for
Countering Terrorism and Targeted Violence, September 2019, 14,
https://www.dhs.gov/sites/default/files/publications/19_0920_
plcy_strategic-framework-countering-terrorism-targeted-violence.
pdf. “Targeted violence” has been defined in major proposals to
include “any incident of predatory violence with respect to which an
identifiable individual or group focuses an attack on a particular
target.” Threat Assessment, Prevention, and Safety Act of 2019, H.R.
838, 116th Cong. (2019).
44  Patel and Koushik, Countering Violent Extremism, 10–11; and
Brian Resnick and Javier Zarracina, “This Cartoon Explains Why
Predicting a Mass Shooting Is Impossible,” Vox, August 5, 2019,
A Presidential Agenda for Liberty and National Security
https://www.vox.com/science-and-health/2018/2/22/17041080/
predict-mass-shooting-warning-sign-research.
45  Leadership Conference on Civil & Human Rights, “Oppose H.R.
838, the Threat Assessment, Prevention, and Safety Act of 2019 (TAPS
Act)” (letter to Member of Congress from civil society groups), August
30, 2019, https://civilrights.org/resource/oppose-h-r-838-the-
threat-assessment-prevention-and-safety-act-of-2019-taps-act/.
46  National Emergencies Act, 50 U.S.C. §§ 1601-1651 (2020).
47  Brennan Center for Justice, “A Guide to Emergency Powers and
Their Use,” December 5, 2018, last updated April 24, 2020, https://
www.brennancenter.org/our-work/research-reports/guide-emer-
gency-powers-and-their-use.
48  I.N.S. v. Chadha, 462 U.S. 919 (1983).
49  Proclamation No. 9844, 3 C.F.R. § Subjgrp. – Proclamations
(2020).
50  A joint resolution to terminate Proclamation 9844 passed the
House by a vote of 245 to 182 on February 26, 2019, 165 Cong. Rec.
H2105 (daily ed. Feb. 26, 2019), and passed the Senate by a vote of 59
to 41 on March 14, 2019, 165 Cong. Rec. S1856 (daily ed. Mar. 14, 2019).
It was vetoed by the president. White House, “Veto Message to the
House of Representatives for H.J. Res. 46,” March 15, 2019, https://
www.whitehouse.gov/briefings-statements/veto-message-house-
representatives-h-j-res-46/. The House override vote fell short of the
necessary two-thirds majority. 165 Cong. Rec. H2814 (daily ed. Mar. 26,
2019). Six months later, a second resolution to terminate Proclama-
tion 9844 again passed both chambers of Congress with bipartisan
majorities, only to be vetoed. Emily Cochrane, “Trump Again Vetoes
Measure to End National Emergency,” New York Times, October 15,
2019, https://www.nytimes.com/2019/10/15/us/politics/
trump-veto-national-emergency.html. A Senate attempt to override
the veto on October 17, 2019, failed. Emily Cochrane, “Senate Fails to
Override Trump’s Veto,” New York Times, October 17, 2019, https://
www.nytimes.com/2019/10/17/us/politics/senate-veto-over-
ride-border.html.
51  Exec. Order No. 13,928, 85 Fed. Reg. 36139 (June 11, 2020).
52  Exec. Order No. 13,943, 85 Fed. Reg 48641 (Aug. 6, 2020); and
Exec. Order No. 13,942, 85 Fed. Reg. 48637 (Aug. 6, 2020).
53  U.S. WeChat Users Alliance v. Trump, No. 20-CV-05910 (N.D. Cal.
Sept. 19, 2020) (order granting preliminary injunction), https://www.
courtlistener.com/recap/gov.uscourts.cand.364733/gov.uscourts.
cand.364733.59.0.pdf.
54  Ian Kullgren and Anita Kumar, “Trump Threatens Mexico with
Tariffs over Immigration,” Politico, May 31, 2019, https://www.politico.
eu/article/trump-threatens-mexico-with-tariffs-over-immigration/.
55  Keith Bradsher and Alan Rappeport, “Trump Ordered U.S.
Companies to Leave China. Is That Possible?,” New York Times, August
24, 2019, https://www.nytimes.com/2019/08/24/business/
trump-china-trade.html.
56  Brennan Center for Justice, “Presidential Emergency Action
Documents,” last updated May 6, 2020, https://www.brennancenter.
org/our-work/research-reports/presidential-emergency-action-doc-
uments.
57  Elizabeth Goitein and Andrew Boyle, “Trump Has Emergency
Powers We Aren’t Allowed to Know About,” New York Times, April 10,
2020, https://www.nytimes.com/2020/04/10/opinion/trump-coro-
navirus-emergency-powers.html.
58  Courtney Kube and Carol E. Lee, “Trump Considering a Move to
Invoke Insurrection Act,” CNBC, June 1, 2020, https://www.cnbc.
com/2020/06/01/trump-considering-a-move-to-invoke-insurrec-
tion-act.html.
59  Insurrection Act of 1807, 10 U.S.C. §§ 251–253 (2020).
60  For instance, the secretary of defense ordered National Guard
units not to use their firearms. Paul Sonne, Fenit Nirappil, and Josh
Dawsey, “Pentagon Disarms National Guard Activated in D.C., Sends
Active-Duty Forces Home,” Washington Post, June 5, 2020, https://
19 Brennan Center for Justice
www.washingtonpost.com/national-security/pentagon-disarms-
guardsmen-in-washington-dc-in-signal-of-de-escala-
tion/2020/06/05/324da91a-a733-11ea-8681-7d471bf20207_story.
html.
61  Steve Vladeck, “Why Were Out-of-State National Guard Units in
Washington, D.C.? The Justice Department’s Troubling Explanation,”
Lawfare (blog), June 9, 2020, https://www.lawfareblog.com/
why-were-out-state-national-guard-units-washington-dc-justice-de-
partments-troubling-explanation.
62  The International Emergency Economic Powers Act (IEEPA) has
been used for decades as a standard tool of foreign policy rather than
an emergency power, and Congress has acquiesced in this usage.
Hearing on the National Emergencies Act of 1976 Before the Subcomm.
on the Const. of the H. Comm. on the Judiciary, 116th Cong. (2020)
(statement of Elizabeth Goitein, Codirector, Liberty and National
Security Program, Brennan Center for Justice), 6–8, https://www.
brennancenter.org/our-work/research-reports/testimony-house-ju-
diciary-committee-national-emergencies-act-1976. There are
currently 60 emergency declarations that rely primarily on IEEPA.
Brennan Center for Justice, “Declared National Emergencies Under
the National Emergencies Act,” last updated September 2, 2020,
https://www.brennancenter.org/our-work/research-reports/
declared-national-emergencies-under-national-emergencies-act.
While the law is certainly susceptible to abuse (Elizabeth Goitein, “The
Alarming Scope of the President’s Emergency Powers,” Atlantic,
January/February 2019, https://www.theatlantic.com/magazine/
archive/2019/01/presidential-emergency-powers/576418/),
requiring separate yearly votes on each sanctions regime is likely
impracticable. It therefore makes sense to pursue IEEPA reform on a
separate track.
63  Assuring that Robust, Thorough, and Informed Congressional
Leadership is Exercised Over National Emergencies Act of 2019, S.
764, 116th Cong. (2019). A version of the ARTICLE ONE Act is also
contained in the Congressional Power of the Purse Act, introduced by
Rep. John Yarmuth in the House and Sen. Patrick Leahy in the Senate.
Congressional Power of the Purse Act of 2020, H.R. 6628, 116th Cong.
(2020); and S. 3889, 116th Cong. (2020). A similar version is
contained in title 5 of the Protecting Our Democracy Act, introduced
by Reps. Adam Schiff, Jerrold Nadler, Carolyn Maloney, John Yarmuth,
Zoe Lofgren, Eliot Engel, and Richard Neal. Protecting Our Democracy
Act of 2020, H.R. 8363 tit. 5, 116th Cong. (2020).
64  Restraint of Executive in Governing Nation Act of 2020, S. 4279,
116th Cong. (2020). The REIGN Act also is included as one component
of the Protecting Our Democracy Act.
65  A starting point would be Sen. Richard Blumenthal’s CIVIL Act;
however, that bill should be strengthened, as it does not include
substantive restrictions on deployment. Curtailing Insurrection act
Violations of Individuals’ Liberties Act, S. 3902, 116th Cong. (2020).
66  166 Cong. Rec. S4357 (daily ed. July 21, 2020) (S. Amdt. 2483
proposed by Sen. Udall); and Sen. Tom Udall and Rep. Jim McGovern,
“Trump and Barr Used a Loophole to Deploy the National Guard to U.S.
Cities. It’s Time to Close It.,” NBC News, August 7, 2020, https://www.
nbcnews.com/think/opinion/trump-barr-used-loophole-deploy-na-
tional-guard-u-s-cities-ncna1236034.
67  Michael Price, “Rethinking Privacy: Fourth Amendment ‘Papers’
and the Third-Party Doctrine,” Journal of National Security Law and
Policy 8 (2016): 247, 250.
68  Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§
1801–1885 (2020).
69  Elizabeth Goitein, “A Chance to Control Domestic Spying,” New
Republic, October 26, 2017, https://newrepublic.com/article/145474/
chance-control-domestic-spying-trump-era-opportunity-re-
form-nsa-surveillance-program; and Hearing on the FISA Amend-
ments Act: Reauthorizing America’s Vital National Security Authority
and Protecting Privacy and Civil Liberties Before the S. Comm. on the
Judiciary, 115th Cong. (2017) (statement of Elizabeth Goitein,
Codirector, Liberty and National Security Program, Brennan Center
A Presidential Agenda for Liberty and National Security
for Justice), 10–12, https://www.brennancenter.org/our-work/
research-reports/testimony-fisa-amendments-act-senate-commit-
tee-judiciary.
70  Under 50 U.S.C. § 1861, the Foreign Intelligence Surveillance
Court issues orders allowing the government to obtain “any tangible
thing” that is relevant to an authorized foreign intelligence, counterter-
rorism, or counterespionage investigation.
71  Certain categories of financial, credit, and communications
records can be obtained without any judicial approval using a type of
subpoena known as national security letters. Electronic Frontier
Foundation, “National Security Letters,” https://www.eff.org/issues/
national-security-letters.
72  Smith v. Maryland, 442 U.S. 735 (1979); and United States v.
Miller, 425 U.S. 435 (1976).
73  Carpenter v. United States, 138 S. Ct. 2206 (2018).
74  Sachit Balsari, Caroline Buckee, and Tarun Khanna, “Which
Covid-19 Data Can You Trust?,” Harvard Business Review, May 8, 2020,
https://hbr.org/2020/05/which-covid-19-data-can-you-trust. There
is little evidence that these digital tools, which rely on data that is
much less nuanced than the information a public health official can
obtain in a phone interview, are an effective substitute for — or even
supplement to — manual contact tracing. Ashkan Soltani, Ryan Calo,
and Carl Bergstrom, “Contact-Tracing Apps Are Not a Solution to the
COVID-19 Crisis,” Brookings Institution, April 27, 2020, https://www.
brookings.edu/techstream/inaccurate-and-insecure-why-contact-
tracing-apps-could-be-a-disaster/.
75  Tony Romm, Elizabeth Dwoskin, and Craig Timberg, “U.S. Govern-
ment, Tech Industry Discussing Ways to Use Smartphone Location
Data to Combat Coronavirus,” Washington Post, March 17, 2020,
https://www.washingtonpost.com/technology/2020/03/17/
white-house-location-data-coronavirus/; and Byron Tau and Michelle
Hackman, “Federal Agencies Use Cellphone Location Data for
Immigration Enforcement,” Wall Street Journal, February 7, 2020,
https://www.wsj.com/articles/federal-agencies-use-cellphone-loca-
tion-data-for-immigration-enforcement-11581078600.
76  U.S. Centers for Disease Control and Prevention, “Contact
Tracing: Frequently Asked Questions,” last updated August 26, 2020,
https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing-
faq.html; and Gregory Barber and Will Knight, “Why Contact-Tracing
Apps Haven’t Slowed Covid-19 in the US,” Wired, September 8, 2020,
https://www.wired.com/story/why-contact-tracing-apps-not-
slowed-covid-us/.
77  Laura Hecht-Felella, “New York’s Contact Tracing Privacy Bill: A
Promising Model,” Brennan Center for Justice, August 21, 2020,
https://www.brennancenter.org/our-work/analysis-opinion/
new-yorks-contact-tracing-privacy-bill-promising-model.
78  Elizabeth Warren et al., “Democratic Senators and Members of
Congress to HHS on HHS Protect Now Incentive” (letter), Washington
Post, updated July 1, 2020, https://www.washingtonpost.com/
context/context-card/e33ec35b-9455-4da1-a035-815d195fb-
65c/?itid=lk_inline_manual_5; and Shannon Firth and Joyce Frieden,
“As COVID Data Collection Moves from CDC to HHS, Questions
Mount,” MedPage Today, July 17, 2020, https://www.medpagetoday.
com/infectiousdisease/covid19/87632.
79  Kirsten Grind, Robert McMillan, and Anna Wilde Mathews, “To
Track Virus, Governments Weigh Surveillance Tools that Push Privacy
Limits,” Wall Street Journal, March 17, 2020, https://www.wsj.com/
articles/to-track-virus-governments-weigh-surveillance-tools-that-
push-privacy-limits-11584479841; and Business Wire, “Domo
Enhances Its COVID-19 Global Tracker with Google and Apple Mobility
Trends,” August 4, 2020, https://www.businesswire.com/news/
home/20200804005313/en/Domo-Enhances-COVID-19-Global-
Tracker-Google-Apple.
80  Harsha Panduranga, Laura Hecht-Felella, and Raya Koreh,
Government Access to Mobile Phone Data for Contract Tracing,
Brennan Center for Justice, May 21, 2020, https://www.brennancen-
20 Brennan Center for Justice
ter.org/sites/default/files/2020-05/2020_05_21_ContactTracing-
Primer_Final.pdf.
81  The Department of Justice’s policy on stingrays provides an
example of the type of guidance that federal agencies could adopt.
U.S. Department of Justice, “Department of Justice Policy Guidance:
Use of Cell-Site Simulator Technology,” September 3, 2015, https://
www.justice.gov/opa/file/767321/download.
82  One model is New York City’s Public Oversight of Surveillance
Technology (POST) Act, which requires the New York Police Depart-
ment to disclose basic information about the surveillance tools it uses
and the safeguards in place to protect the privacy and civil liberties of
New Yorkers. Brennan Center for Justice, “The Public Oversight of
Surveillance Technology (POST) Act: A Resource Page,” last updated
February 7, 2020, https://www.brennancenter.org/our-work/
research-reports/public-oversight-surveillance-technolo-
gy-post-act-resource-page. For other examples of surveillance
oversight legislation, see Oakland, CA Municipal Code § 9.64; and
Seattle, WA Municipal Code § 14.18.
83  One such model, in contrast to applications that rely on user
location data, could be Apple and Google’s proximity-based contact
tracing functionality. Apple and Google, “Privacy-Preserving Contact
Tracing,” https://covid19.apple.com/contacttracing; and Gregory
Barber, “Google and Apple Change Tactics on Contact Tracing Tech,”
Wired, September 1, 2020, https://www.wired.com/story/google-ap-
ple-change-tactics-contact-tracing-tech/. But even this model
implicates significant privacy issues. Bennett Cyphers and Gennie
Gebhart, “Apple and Google’s COVID-19 Exposure Notification API:
Questions and Answers,” Electronic Frontier Foundation, April 28,
2020, https://www.eff.org/deeplinks/2020/04/apple-and-googles-
covid-19-exposure-notification-api-questions-and-answers.
84  For an example of a bill with support from privacy advocates that
proposes such protections, see Mark R. Warner, “Protecting Civil
Liberties during COVID-19: Warner, Blumenthal Eshoo Schakowsky &
DelBene Introduce the Public Health Privacy Act,” press release, May
14, 2020, https://www.warner.senate.gov/public/index.cfm/2020/5/
protecting-civil-liberties-during-covid-19-warner-blumental-esh-
oo-schakowsky-delbene-introduce-the-public-health-privacy-act.
85  White House, Consumer Data Privacy in a Networked World: A
Framework for Protecting Privacy and Promoting Innovation in the
Global Digital Economy, February 2012, https://obamawhitehouse.
archives.gov/sites/default/files/privacy-final.pdf.
86  J. William Leonard, “The Corrupting Influence of Secrecy on
National Policy Decisions,” Research in Social Problems and Public
Policy 19 (2011): 421, 423 (“Official government secrecy is in many
regards a relic of the Cold War that has long outlived its usefulness.”);
and National Commission on Terrorist Attacks upon the United States,
The 9/11 Commission Report: Final Report of the National Commission
on Terrorist Attacks upon the United States, 2004, 417 (noting that the
emphasis on “need to know” within the classification system
“implicitly assumes that the risk of inadvertent disclosure outweighs
the benefits of wider sharing. Those Cold War assumptions are no
longer appropriate.”).
87  James B. Steinberg et al., “Building Intelligence to Fight
Terrorism,” Brookings Institution, September 21, 2003, https://www.
brookings.edu/research/building-intelligence-to-fight-terrorism/.
88  Suzanne E. Spaulding, “No More Secrets: Then What?,”
Huffington Post, June 24, 2010, https://www.huffpost.com/entry/
no-more-secrets-then-what_b_623997?guccounter=1.
89  Claire Finkelstein and James Clapper, “Former Director of
National Intelligence James Clapper on Public Trust and National
Intelligence,” March 11, 2020, in Case in Point, produced by University
of Pennsylvania Carey Law School, podcast, https://www.law.upenn.
edu/live/news/9861-former-director-of-national-intelligence-james.
90  Office of the Director of National Intelligence, Principles of
Intelligence Transparency for the Intelligence Community, 2015,
https://www.dni.gov/index.php/ic-legal-reference-book/the-princi-
ples-of-intelligence-transparency-for-the-ic.
A Presidential Agenda for Liberty and National Security
91  ODNI created a public-facing website, icontherecord.tumblr.
com, to house these documents and resources.
92  Office of the Director of National Intelligence, “ODNI Releases
Annual Intelligence Community Transparency Report,” news release
no. 12-20, April 30, 2020, https://www.dni.gov/index.php/newsroom/
press-releases/item/2111-odni-releases-annual-intelligence-com-
munity-transparency-report.
93  50 U.S.C. §§ 1872 & 1873(b).
94  Dustin Volz, “NSA Backtracks on Sharing Number of Americans
Caught in Warrant-Less Spying,” Reuters, June 9, 2017, https://www.
reuters.com/article/us-usa-intelligence/nsa-backtracks-on-sharing-
number-of-americans-caught-in-warrant-less-spying-
idUSKBN19031B.
95  Thomas Gibbons-Neff, “Afghan War Data, Once Public, Is
Censored in U.S. Military Report,” New York Times, October 30, 2017,
https://www.nytimes.com/2017/10/30/world/asia/afghani-
stan-war-redacted-report.html.
96  Exec. Order No. 13,862, 3 C.F.R. § Subjgrp. – Proclamations
(2020).
97  Dustin Volz and Brody Mullins, “U.S. Intelligence Office to Stop
Briefing Congress on Election Security,” Wall Street Journal, August
30, 2020, https://www.wsj.com/
articles/u-s-intelligence-office-will-no-longer-brief-congress-on-
election-security-11598730496.
98  Public Interest Declassification Board, Transforming the Security
Classification System, November 2012, 2–3, https://www.archives.
gov/files/declassification/pidb/recommendations/transform-
ing-classification.pdf.
99  Elizabeth Goitein, The New Era of Secret Law, Brennan Center for
Justice, October 18, 2016, https://www.brennancenter.org/sites/
default/files/2019-08/Report_The_New_Era_of_Secret_Law_0.pdf.
100  When Congress passed the Whistleblower Protection Act of
1989 (WPA), it provided most federal employees with protections from
reprisals for reporting violations of law, mismanagement, gross waste
of funds, and abuses of authority, but it specifically exempted
employees and contractors in the U.S. intelligence agencies and the
FBI. Whistleblower Protection Act of 1989, 5 U.S.C. § 1213(i), (j); and S.
Rep. No. 112-155, at 17 (2012). The WPA ordered the attorney general
to write regulations to give FBI employees similar protections through
internal procedures (5 U.S.C. § 2303(a)(1), (2); and U.S. Gov’t
Accountability Off., GAO-15-112, Whistleblower Protection: Additional
Actions Needed to Improve DOJ’s Handling of FBI Retaliation
Complaints (2015), https://www.gao.gov/products/GAO-15-112), and
Congress later passed the Intelligence Community Whistleblower
Protection Act, which established a procedure for making protected
disclosures to agency inspectors general. Intelligence Community
Whistleblower Protection Act of 1988, Pub. L. No. 105-272, §§ 701, 702
(1988). Neither of these internal processes have proven sufficient to
protect intelligence community whistleblowers from reprisals for
21 Brennan Center for Justice
reporting internal government wrongdoing because they do not
provide independent due process mechanisms to enforce their rights
against retaliation. Whistleblower Retaliation at the FBI: Improving
Protections and Oversight Before the S. Comm on the Judiciary, 114th
Cong. (2015) (statement of Michael German, Fellow, Brennan Center
for Justice), https://www.brennancenter.org/our-work/research-re-
ports/testimony-improving-fbi-whistleblower-protections; and
Protecting Those Who Blow the Whistle on Government Wrongdoing
Before the Subcomm. on Gov’t Wrongdoing of the H. Comm. on
Oversight and Reform, 116th Cong. (2020) (statement of Liz Hempo-
wicz, Director of Public Policy, Project on Government Oversight),
https://docs.house.gov/meetings/GO/GO24/20200128/110405/
HHRG-116-GO24-Wstate-HempowiczE-20200128.pdf.
101  Exec. Order No. 13,526, 3 C.F.R. § Subjgrp. – Proclamations
(2011).
102  Public Interest Declassification Board, “Eight Steps to Reduce
Overclassification and Rescue Declassification by Elizabeth Goitein,
the Brennan Center for Justice” (blog), National Archives, December
5, 2016, https://transforming-classification.blogs.archives.
gov/2016/12/05/eight-steps-to-reduce-overclassification-and-res-
cue-declassification-by-elizabeth-goitein-the-brennan-cen-
ter-for-justice/.
103  For more on these recommendations, see Goitein, The New Era
of Secret Law, 64–69.
104  National Whistleblower Center, “Where We Stand on President
Obama’s ‘Policy Directive’ on National Security Whistleblowers,” press
release, https://www.whistleblowers.org/news/
where-we-stand-on-president-obamas-policy-directive-on-nation-
al-security-whistleblowers/.
105  Whistleblower Retaliation at the FBI: Improving Protections and
Oversight Before the S. Comm on the Judiciary, 114th Cong. (2015)
(statement of Michael German, Fellow, Brennan Center for Justice),
https://www.brennancenter.org/our-work/research-reports/
testimony-improving-fbi-whistleblower-protections.
106  Hearing on the Importance of Federal Whistleblowers Before the
Subcomm. on Gov’t Operations of the H. Comm on Oversight and
Reform, 116th Cong. (2020) (statement of David K. Colapinto, National
Whistleblower Center), https://docs.house.gov/meetings/GO/
GO24/20200128/110405/HHRG-116-GO24-Wstate-Colapin-
toD-20200128.pdf; and Protecting Those Who Blow the Whistle on
Government Wrongdoing Before the Subcomm. on Gov’t Wrongdoing
of the H. Comm. on Oversight and Reform, 116th Cong. (2020)
(statement of Liz Hempowicz, Director of Public Policy, Project on
Government Oversight), https://docs.house.gov/meetings/GO/
GO24/20200128/110405/HHRG-116-GO24-Wstate-Hempo-
wiczE-20200128.pdf.
A Presidential Agenda for Liberty and National Security
ABOUT THE AUTHORS ABOUT THE BRENNAN CENTER’S
L I B E R T Y A N D N AT I O N A L
 Elizabeth Goitein codirects the Brennan Center’s Liberty and SECURITY PROGRAM
National Security Program. She is a nationally recognized expert in
presidential emergency powers, foreign intelligence surveillance, and The Brennan Center’s Liberty and
government secrecy. Her writing has been featured in several major National Security Program works to
newspapers, high-profile political magazines, and law journals. She has advance effective national security
testified before the Senate and House Judiciary Committees and policies that respect constitutional
frequently provides policy advice and drafting assistance to lawmakers. values and the rule of law, using
She previously served as counsel to Sen. Russ Feingold on the Senate research, innovative policy
Judiciary Committee and as trial counsel in the Federal Programs recommendations, litigation, and
Branch of the Department of Justice’s Civil Division. public advocacy. The program
focuses on reining in excessive
 Faiza Patel codirects the Brennan Center’s Liberty and National government secrecy, ensuring that
Security Program. She has testified before Congress opposing the counterterrorism authorities are
dragnet surveillance of Muslims, organized advocacy efforts against narrowly targeted to the terrorist
state laws designed to incite fear of Islam, and developed legislation threat, and securing adequate
creating an independent inspector general for the New York Police oversight and accountability
Department. Patel is a frequent commentator on national security and mechanisms.
counterterrorism issues, and she has published widely in academic
outlets as well. Before joining the Brennan Center, Patel worked as a
senior policy officer at the Organization for the Prohibition of AC K N OW L E D G M E N TS
Chemical Weapons in the Hague and clerked for Judge Rustam S.
Sidhwa at the International Criminal Tribunal for the former The Brennan Center gratefully
Yugoslavia. acknowledges The Bauman
Foundation, CS Fund/Warsh-Mott
Legacy, Democracy Fund, The
Endeavor Foundation, Inc., The
William and Flora Hewlett
Foundation, Media Democracy
Fund, and Open Society
Foundations for their generous
support of our work.

The authors would like to thank

their colleagues in the Liberty and
National Security Program for their
assistance in conceptualizing,
researching, and writing this paper,
and the dedicated staff of the
Communications Department for
making its publication possible.

22 Brennan Center for Justice A Presidential Agenda for Liberty and National Security
Brennan Center for Justice at New York University School of Law
120 Broadway // 17th Floor // New York, NY 10271
www.brennancenter.org